Got A Prescription for That?: Colorado Supreme Court Says You Can Fire A Worker for Smoking Medical Marijuana

Written by Robert G. Brody and Alexander Friedman on July 20, 2015

In a blow to legalized marijuana advocates but a move that is sure to please employers, the Colorado Supreme Court recently ruled that a company could lawfully fire an employee who used medical marijuana on his personal time.

The legal status of marijuana, and medical marijuana in particular, remains hazy. While more and more states are legalizing medical marijuana – and in 2013, Colorado and Washington became the first states to legalize recreational marijuana – marijuana use remains illegal under federal law. To make this issue even cloudier, even under federal law employers must be careful –use of medical marijuana may require a reasonable accommodation under the Americans with Disabilities Act, which would make its use legal in that circumstance. Thus, how to handle marijuana use in the workplace remains unclear.

The Colorado Supreme Court this month shed a tiny sliver of light on this confusing patchwork in Coats v. Dish Network. This case centered on whether smoking medical marijuana at home, outside of work hours, could be considered “lawful activity.” Under section 24-34-402.5 of the Colorado code, it is generally illegal to fire someone for engaging in legal activity off the premises of the employer during non-working hours. In Coats, a telephone customer service representative for Dish Network was fired after testing positive for marijuana during a company drug test. The employee was a quadriplegic who was prescribed medical marijuana due to painful muscle spasms caused by his condition. The company fired him even though it was made aware that he was licensed to use medical marijuana and only did so outside of work hours.

The employee sued Dish Network for wrongful termination. The case was dismissed by the trial court and this decision was upheld by the Court of Appeals. In affirming the lower courts’ dismissal, the Colorado Supreme Court held that an activity had to be lawful under both state and federal law to be protected by Section 24-34-402.5. Because marijuana (including medical marijuana) is illegal under federal law, the Court found that smoking medical marijuana was therefore not protected as a “lawful activity” under Section 24-34-402.5.

While this decision is only binding in Colorado, it provides a hint as to how courts may approach this issue in the future. Only time will tell if this is a minority or majority position. We will continue to monitor this emerging area of the law and update you as necessary.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Alexander Friedman is an Associate with Brody and Associates, LLC. He works on both Labor and Employment Law matters. Learn More